Government and Politics AS unit 2

Defining Cabinet government

• Dicey identified a system of cabinet government at the heart of the UK’s political system in the late nineteenth century. Theory suggests that Cabinet operates collectively.

o Decisions are made by the Cabinet as a whole, where the Prime Minister is merely primus inter pares. For instance, Gordon Brown held lengthy meetings with his senior ministers in the autumn of 2007 when they discussed the pros and cons of calling a snap election. Following the banking crisis in 2008, Brown formed a series of economic Cabinets.

o A further strand entails collective responsibility. All ministers are expected to support Cabinet decisions in public, or resign. Both Clare Short and Robin Cook quit Blair’s Cabinet in 2003 over Iraq.

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Two powers of the Prime Minister

The PM has the power of patronage, which covers appointments to Cabinet, head of the civil service, peerages and honours, and senior levels of the judiciary and clergy. In relation to ministerial appointments Tony Benn described the power of hire and fire as an enormous one since it can be used as a tool to exert control over the parliamentary party.

The PM also possesses the power to declare war. In 2003 there was a vote in the House of Commons before the Baghdad invasion, but this was more to do with Tony Blair seeking moral authority since it is not a constitutional requirement.

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Role of the Prime Minister

The PM has become de facto head of state and as such they represent Britain on the world stage. As part of this role they attend/chair summits of the EU, G8, etc.

The PM is chief government spokesperson. In this capacity they answer weekly questions in the Commons at PMQs, and Blair initiated monthly press conferences. Brown and Cameron followed this precedent.

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Defining collective ministerial responsibility

Collective ministerial responsibility (CMR) is a convention that can be described as the glue which holds Cabinet government together.It is convention that all ministers publicly support decisions of Cabinet (even if they disagree in private) or its committees or resign. Over the last 40 years or so, around two dozen ministers have exited the government on the grounds of collective responsibility. Most famously, the dramatic resignation of Michael Heseltine over theWestland affairin 1986. Less famously, but more recently,Robin CookandClare Shortleft the government over the Iraq invasion.

Under the penumbra of collective responsibility, convention dictates that the government should resign if defeated on a vote of confidence in the Commons, for instance James Callaghan called for a dissolution on 28 March 1979 following a defeat in the Commons shortly after the government’s devolution proposals were rejected by the Scots and Welsh.

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Role of a Minister

The most senior ministers will be in charge of an entire department, such as Andrew Lansley at the Department of Health. Junior ministers will be in charge of a more narrow range of policy, such as the Immigration Minister, Damian Green. As such they seek to develop policy and legislation in line with the government’s aims – which is usually outlined in the manifesto at the preceding election. In theory a Minister of State must assume responsibility for everything under their aegis. So if a mistake occurs in their department, ministers are expected to be held accountable.Accountability is visible when ministers face scrutiny by the legislature. This can either be via appearances before the relevant Departmental Select Committee in the Commons or in Questions to Ministers in either parliamentary chamber. Increasingly ministers face trial by media, where they are expected to tour TV studios defending government mistakes. Under the previous Labour government, for example, all ministers defended the government’s record on issues such as lost data, prison escapes, etc.

Ministers of State have an input into government policy making. They attend weekly Cabinet sessions and can voice opinions on issues beyond their brief.

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Defining individual ministerial responsibility

A feature of parliamentary government is that the executive is drawn from the legislature and according to the constitution is directly answerable to it. The ministerial 'highway code' is laid out in the ministerial code of conduct, which is issued to all ministers.

• It is very rare for a minister to resign as a result of an error of policy or administration, but we can point to the resignation of Estelle Morris over the A levels fiasco in 2002, and Bev Hughes over visas in 2004.

• A personal mistake is by far the most common reason for ministers to resign, but some ministers weather the media storm better than others. In the 1990s it seemed like the Tories had set up a ministerial resignation production line (Mellor, Mates, Yeo, Brown, Hughes, Aitken), but after New Labour took office it quickly became apparent that being whiter than white was a promise that would be difficult to fulfil. In 1998 the Welsh Secretary, Ron Davies, resigned after a ‘moment of madness’ on Clapham Common. Under the Con-Lib coalition, Treasury Minister David Laws was first to fall on his sword following revelations about claiming housing expenses while sharing a house with his male partner.

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Main sources of prime ministerial power

The powers of the Prime Minister are not defined by statute, but derive principally from the royal prerogative. Technically the monarch is Head of State, declares war etc., but in practice these powers reside with the person that lives at Number 10 Downing Street. Perhaps the most significant of these is the power of patronage. This allows the PM to make appointments to a range of positions throughout the state, from the head of the civil service, to the director of the BBC, and the Archbishop of Canterbury. The power of hire and fire allows the PM to wield enormous influence over their parliamentary colleagues: promises of jobs in government for aspirant backbenchers, and the threat of the sack for those who carry the red boxes is a powerful tool.Constitutionally the Prime Minister is the person who can command a majority support in the House of Commons. As the leader of the largest party, the combined influence of the power of patronage and the party whip ensure that the PM can exert a strong influence in the legislature. When a PM enjoys a comfortable majority it is possible to argue that some MPs owe their place to the popularity of their leader – it was claimed that Blair told the Parliamentary Labour Party that the 1997 landslide was achieved on his coat tails.

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Main sources of prime ministerial power 2

The Prime Minister is by the far the most well-known politician in the government and their personal stature, allied with a good media image, can be used to help secure a personal mandate. PMs have exploited the media by, for instance, staging photo ops with foreign leaders, magnifying their profile and spinning their personal story via ever expanding No 10 communications offices. Blair took this a step further by introducing presidential style monthly press conferences. Brown and Cameron have also sought to take advantage of the media. Witness, as Andrew Blick and George Jones point out, the decision by both PMs to fly into Afghanistan, primarily for publicity purposes, and spend a few hours with British troops. Ideas about charismatic leadership are also relevant here. Thatcher and Blair perfected the cultivation of an authoritative image: Thatcher once claimed that she required no more than a few hours’ sleep a night; the most celebrated occasion when Blair employed his acting skills was after the death of Princes Diana, whom he labelled the “people’s princess”.

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Main functions of Cabinet

It is normally considered that formal business takes place at the beginning of meetings. This includes things like EU news. Ministers will report back from the Council, or other meetings with their EU counterparts. The Chancellor George Osborne was in close contact with the Irish Finance Minister with regard to the details of Treasury assistance, and it is likely that Cabinet were kept posted on this.

Extraordinary meetings can be called in times of crisis and emergency. The members of the dramatic sounding ‘Cobra’ vary according to the situation at hand. Cobra convened under Blair in response to the September 2000 fuel protests, 9/11, and 7/7. Under Brown the Glasgow airport attack triggered a meeting. Under Cameron, Cobra met in response to the Yemen cargo bomb plot.

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Main functions of Cabinet 2

A modern development is the focus on media management. ‘The Grid’ was prepared by Jonathan Powell, Blair’s Chief of Staff, where news announcements by the government are arranged in advance. It was reported that Powell had the report on the death of Diana penned in for a Friday some months in advance. ‘The Grid’ continued to be a feature of the Brown Cabinet.

Regular meetings are used to settle disputes on issues of controversy. Cabinet ministers are serious politicians in their own right and can influence policy beyond their departmental brief. Third term issues of the Blair government that were thrashed out in Cabinet include the smoking ban in England and the decision to update/replace Trident. An obvious example from the Brown Cabinet would be the long political meetings held before the election that never was in autumn 2007. The debate about the Alternative Vote issue cropped up more than once during the dying days of the Brown government, with Cabinet moving from against backing it to in favour of supporting it.

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Reasons why ministers resign

Ministers are expected to resign if they are unwilling to accept government policy. Over the last 40 years or so, around two dozen ministers have exited the government on the grounds of collective responsibility. Most famously, the dramatic resignation of Michael Heseltine over the Westland affair in 1986. Less famously, but more recently, Robin Cook and Clare Short left the government over the Iraq invasion.It is very rare for a minister to resign as a result of an error of policy or administration, but we can point to the resignation of Estelle Morris over the A levels fiasco in 2002, and Bev Hughes over visas in 2004.A personal mistake is by far the most common reason for ministers to resign, but some ministers weather the media storm better than others. In the 1990s it seemed like the Tories had set up a ministerial resignation production line (Mellor, Mates, Yeo, Brown, Hughes, Aitken), but after New Labour took office it quickly became apparent that being whiter than white was a promise that would be difficult to fulfil. In 1998 the Welsh Secretary, Ron Davies, resigned after a ‘moment of madness’ on Clapham Common. Distinguishing between role responsibility and personal behaviour as a reason for resigning is not always easy, as the second Blunket resignation testifies.Ultimately ministers will go when the embarrassment to the government of a resignation is less than the embarrassment of them keeping their job. Therefore it is often the stench of impropriety rather than any actual wrongdoing that forces ministers to walk the plank.

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Constraints on the powers of the Prime Minister

It should be noted that the power of the PM is variable between as well as within premierships. Whilst we can argue that Thatcher was more powerful than Major, it can equally be argued that their respective powers waxed and waned during both of their tenures in Number 10. The elastic nature of the office is not just due to the way in which PMs use their powers, but also due to the wider political climate.

Recent evidence supports the view that the power of the UK premier is not unlimited, as some would argue. This was summed up by an article inThe Economistunder the headline: ‘The Strange Death of Tony Blair: Who Killed the British Prime Minister?’ Blair has delivered the Labour Party an unprecedented 3 successive election victories, but it is now kicking him out of Number 10. It is true that, as Hennessy said, PM power is a ‘putty-like concept’.

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Constraints on the powers of the Prime Minister 2

Events, dear boy, events: The single most important reason that Blair became a liability to his party is Iraq. Had circumstances unfolded differently after the invasion, voters may have been more willing to forgive Blair’s apparent tendency to toe the Bush line. Likewise Brown was always facing an uphill battle in the face of the perfect storm caused by the banking crisis of 2008. The public were hardly au-fait with the US sub-prime mortgage market, and credit default swaps. No matter, Brown was to blame for the economic downturn.

Cabinet colleagues also have to be considered as a PM cannot ignore them forever. As Thatcher’s exit proved, a premier who rides roughshod over their Cabinet will pay the ultimate price (a process the Iron Lady herself described as “regicide”). Blair tries to be more collegial when it was clear there were no WMD in Iraq. Brown ended bilaterals as an olive branch to his colleagues and tried to act in an even more collegial fashion after a number of ex-Ministers were found to be plotting against him.

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Judges and Civil Liberties, The rule of law

The rule of law is a principle that states(i) no one is immune to the law (ii) no one can be punished except for a breach of the law (iii) that law is applied equally to all citizens throughout the UK.

Discussion in recent months about the possible introduction of Sharia/Islamic law in the UK highlighted how the idea of equal application of the law would be incompatible with the principle of rule of law.

It also states that citizens have rights and government power is not unlimited, e.g. the Belmarsh case in 2004 which ended indefinite detention.

For the rule of law to be protected, judges should be independent from government, access to courts should be free so that justice is not denied, and court proceedings should be open and fair, e.g. a man should have a right to know his accuser.

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Functions of judges

Judges have a responsibility to ensure that a fair trial is conducted and will interpret the law when determining sentencing, on the basis of common law, case law, or statutory guidelines – e.g. the starting point for murder is 10 years.

Judges also have a quasi-political role and perform judicial review, e.g. the Belmarsh case in 2004 which ended indefinite detention.

Judges may also be final arbiters of the constitution when disputes arise; this could issues pertaining to human rights and/or civil liberties.

B; Explain the main ways in which the judiciary re

First, any political affiliations are not supposed to interfere with jurisprudence (the facts of the case in relation to the law). Thus judges are not blocked from membership of parties or pressure groups, but any conflict of interest could see the outcome of a case overturned. This was highlighted in the Pinochet extradition case where Lord Hoffman’s membership of Amnesty International led to the rejection of a ruling on the Chilean dictator.Second, Britain’s senior judges, by virtue of their extensive education, are able to see beyond prejudiced ideas and views based on ignorance. J. A. G. Griffith† criticised judges for their homogeneity, but would we feel more confident about what happens in court if we were judged by someone of the same race/gender/class as ourselves but who had no understanding of the law?

Lastly, one of the virtues of being a citizen in a fair and free society is the capacity of external groups to campaign on someone’s behalf (a defendant or criminal) for a retrial. If a conviction is believed to be unsound, support can be forthcoming from the media or pressure groups (or both). A number of convictions have been quashed following retrial, such as the release of the Belmarsh prisoners.

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Outline the main methods used by the judiciary to

Through the power of judicial review judges can declare actions by public officials/bodies ‘ultra vires’ and have been unafraid to use these powers: during Major’s government the courts found against Howard as Home Secretary ten times on a range of issues, with the most high profile case involving overturning his decision to impose a minimum sentence on the killers of James Bulger; in 1999 judges declared Straw’s attempt as Home Secretary to deport asylum seekers to France and Germany unlawful.

Since the introduction of the Human Rights Act (1998) judges have had the power to review cases in light of the European Convention on Human Rights. Judges have used the new powers to provide citizens extra protection against civil rights abuses: in 2004 the Law Lords ruled 8-1 against the government’s indefinite detention of terrorist suspects in Belmarsh and Broadmoor prisons; in 2005 judges declared that evidence gained under torture was inadmissible.

Judges can also act as a pressure group via their comments (sometimes off the record) to the media, in the House of Lords, or when summing up cases: in 2003 Lord Woolf (the ex-Lord Chief Justice) attacked Blunkett’s plans to restrict the sentencing powers of judges. Judges have continued to act as a pressure group when making public comments: recently the former Lord Chief Justice, Lord Phillips, aired his reservations about England’s prisons crisis. In ‘leaked’ papers of a meeting, Phillips attacked the Criminal Justice Act 2003 for placing pressure on a prison system that is at record numbers.

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Constitution: Defining a constitution

A constitution essentially spells out the architecture of governance. It details the working arrangements of government in a country and the collection of rules, written and unwritten which regulate the government and inform the relationship between the government and the people.

In relation to the former, constitutions can specify what the different powers of respective branches, and levels of government, are, as well as the relations between them. For instance the German and Australian constitutions provide for federal arrangements, whereas the UK and France operate unitary systems.

Regarding the latter, a constitution also specifies the relations between the citizen and the state. Famously, the first ten amendments to the US constitution are known as the Bill of Rights, and include the right to free speech, bear arms, etc.

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Two features of a codified constitution

The roles of different branches and levels of government and the relations between the citizen and the state are brought together in a single document, the oldest and shortest working example of which is the US constitution.

Codification implies entrenchment, i.e. it is a higher law and requires a special procedure for amendment. An example is the Irish constitution whereby a referendum is set after a bill passes both houses of its legislature.

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Distinguishing between a federal and a unitary con

A federal constitution entails separate spheres of sovereignty between national and sub- national levels and each level is, in theory, autonomous. In the USA, for instance, federal government in Washington DC is supreme in areas such as foreign trade, but states are supreme in areas such as crime (e.g. some states have the death penalty, others don’t).

A unitary constitution, on the other hand, draws all power into a central source. In the UK all legal power resides in Westminster since “Parliament can make or unmake any law” (Dicey).

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Defining sovereignty

•Sovereignty refers to absolute power, i.e. the exclusive right to control of governance. In the case of the UK, sovereignty in legal terms (de jure) is said to reside in Westminster since “Parliament has the sole right to make or unmake any law” (Dicey). But the concept of popular sovereignty suggests that (de facto) power is merely on loan to legislators since the people exercise popular sovereignty via the ballot box.

•Another distinction is internal/external. The former relates to power exercised within national boundaries, whilst the latter is connected to the ability of a state to participate in international negotiations.

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B: Main features of the UK constitution

The UK constitution is uncodified. It is drawn from a number of sources, much of which is written, and is not contained in a single authoritative document. Written sources include Acts of Parliament such as the Human Rights Act (1998), and in terms of unwritten sources we could point to the convention that the Prime Minister is the leader of the party that commands a majority in the Commons – a feature brought into sharp relief following the 2010 election. Another core feature is that the UK operates according to the rule of law. This is a principle which states that law is applied equally to all citizens throughout the UK. Discussion in recent months about the possible introduction of Sharia/Islamic law in the UK highlighted how this would be incompatible. It also states that citizens have rights and government power is not unlimited, e.g. the Belmarsh case in 2004 which ended indefinite detention. Another feature is that it is unitary, i.e. it draws all power into a central source. In the UK all legal power resides in Westminster since “Parliament can make or unmake any law” (Dicey)

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What are the sources of the UK constitution?

SCCREWStatute.Acts of Parliament such as the House of Lords Act 1999 (cutting the number of hereditaries to a rump of 92), or the Terrorism Act 2005 (28 day detention), account for a great deal of the rules of governance in the UK.Commonlaw. Sometimes referred to as ‘case law’ or ‘judge made law’ since the decisions of judges in court form the basis of law, and precedent determines how the law is applied in subsequent cases. Much of criminal law in England and Wales is derived from common law - for instance there is no statute making murder illegal.Convention.That the most senior members of government departments shall form a Cabinet, or that the Prime Minister should be the leader of a party that commands a majority in the Commons is not to be found in any statute law. We can add to this the Salisbury Convention that guides the Lords not to reject any bill which was a manifesto commitment of the government. Royalprerogative. It is now customary that the Prime Minister exercises powers which are theoretically the preserve of the monarch, e.g. hiring and firing ministers, calling elections, etc.Europeanlaw. Accession to the EEC (now EU) has had a considerable impact on the shape of the UK constitution. The European Court of Justice reigns supreme where EU law applies, e.g. in July 2008 Luxembourg ruled in the Coleman case that it is illegal to discriminate against an employee because of their association with a disable person. Worksof authority.A canonical sextet of Walter Bagehot, A.V. Dicey, Sidney Lowe, L.S. Amery, Harold Laski, and Ivor Jennings have each created a thesis or doctrine on the constitution, e.g. Dicey established the twin pillars of the constitution: rule of law and parliamentary sovereignty. Bagehot outlined the principle of Cabinet government, and this is the theoretical model applied today.

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Distinguishing between a codified and an uncodifie

In a codified constitution the roles of different branches and levels of government and the relations between the citizen and the state are brought together in a single document, the oldest and shortest working example of which is the US constitution. Conversely an uncodified constitution, as found in the UK, Israel, and New Zealand does no such thing and instead draws upon multiple sources. In the UK, a great deal of constitution is written down in the shape of statute law, but much of our understanding about how government operates is based on convention, e.g. that a government resigns en masse following defeat in a confidence motion.

Codification implies entrenchment, i.e. it is a higher law and requires a special procedure for amendment compared to normal law. An example is the Irish constitution whereby a referendum is set after a bill passes both houses of its legislature. In the UK our constitutional furniture can be rearranged by the same means by which the rules about what breed of dog a person can own are changed.

Codification usually implies that the document is judicable, i.e. it is left to the highest court in that nation to determine ultimately what is and isn’t ‘constitutional’. For instance numerous cases (ban on headscarves, existence of Islamic party) have been tried at Turkey’s Constitutional Court relating to contraventions of the principle of secularism in Article 2 of its constitution. UK courts meanwhile, determine discrimination cases only in relation to Acts of Parliament in absence of a codified constitution. Even the introduction of the Human Rights Act does not permit judges to declare actions unconstitutional, merely incompatible with the European Convention on Human Rights.

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Where sovereignty is located in the UK

Legal (de jure) sovereignty is located in Parliament. Dicey stated: “Parliament has the sole power to make or unmake any law.” This means that it has ultimate legal power and its actions cannot be over-ridden by any other body.

Some power has been transferred downwards to the new devolved structures, and upwards to the supranational EU. The Scottish Parliament has exercised its primary legislative powers to plough a tartan furrow on higher education funding and long term care for the elderly. The EU extends its tentacles to regulate all manner of things, ranging from limits on company CO2 emissions to what farmers can produce. Sovereignty in practice (de facto) can be said to be located elsewhere. The doctrine of popular sovereignty suggests that the people hold ultimate power and that they lend it to MPs between elections. Although the UK does not operate a system of recall elections, politicians must remain sensitive to the needs and wishes of the electorate (either locally or nationally) lest they get ejected. We could also argue that the usage of referendums (Scotland/Wales 1997, London/NI 1998) saw popular sovereignty triumph over parliamentary sovereignty.Parliamentary government can be said to be a euphemism for Cabinet government, and, by extension, for prime ministerial government. Hailsham’s “elective dictatorship” (coined, incidentally, at a time when the government of the day did not command an absolute majority) argument sought to capture how since the establishment of the sovereignty of Westminster, there had been a steady flow of power to the government. Further centralisation by modern Prime Ministers, exaggerated by the growth in personality politics, suggests real power, in terms of political sovereignty, lies at No. 10.

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Ways in which Parliament is sovereign 1

First, power which has been transferred either upwards or downwards can be reversed. Devolution can be repealed by a simple Act of Parliament. Margaret Thatcher scrapped the Greater London Council and six Metropolitan Boroughs in 1986. In relation to Northern Ireland, home rule was imposed by Edward Heath in 1972 and since power sharing was introduced the assembly has been suspended (in 2002, but restored in 2007). Law from Brussels/Strasbourg/Luxembourg may take precedence over UK law in certain policy areas, but the UK could withdraw from the EU at any time.

This leads to a related point: no parliament can bind its successors. This applies not just to the constitutional changes outlined above, but to any Act of Parliament. Thus the current government could, if it so wished, repeal 28 day detention without trial.

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Ways in which Parliament is sovereign 2

Much has been made about the erosion of sovereignty by the judiciary, principally in relation to the passage of the Human Rights Act and the creation of the new Supreme Court, which ends the function of the House of Lords as the final court of appeal. But in each case, these changes do not give power to the judicial branch to strike down actions of Parliament. In the highly controversial Belmarsh case, for instance, Parliament could have ignored the judgement declaring indefinite detention for foreign nationals. Further, even though Parliament chose not to ignore the judgment, the suspected international terrorists had to remain in prison until new legislation was written since the principle of parliamentary sovereignty makes it impossible to strike down primary legislation. Hence the HRA has provided a moral rather than legal check on the legislature.

Lastly, in the absence of a codified constitution detailing the outcome of a referendum as binding on our legislators, Parliament could ignore the so called will of the people. If, say, a vote on converting to the Euro was defeated on a low turnout, the government could still choose to negotiate for entry.

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Comments

This is a wide-ranging, yet useful set of cards. It begins with a an overview of UK cabinet government, but then gives less detailed outlines of the UK constitution and the judiciary. As an exemplary 'end product' students might this a very useful resource, showing what they should aim to produce during their final revision and before embarking upon practice answers to past questions.